A Look at Recent Title VII Decisions

A broad set of protections, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a number of factors, including race, color, religion, sex, and national origin. Over the past 50 years, courts and lawmakers have dedicated a lot of time to tweaking the law and figuring out how to apply it to situations that may be completely unique or reflective of society’s ever-evolving norms.

Recent months have proved to be no exception, with a number of continuing legal challenges arising under Title VII further defining the breadth and boundaries of the protection it offers. Around the country and even up to the US Supreme Court, Title VII litigation is making for some interesting decisions and debates. Here are some of the more noteworthy questions and revelations of late:

Volunteers aren’t entitled to Title VII protections from employment discrimination

This might strike some as obvious, since the very notion that one is a volunteer rather than a paid employee should be enough to draw a distinction. Numerous other recent suits brought by interns and independent contractors looking to confer employee status upon themselves, however, have blurred the lines more than before. As in those cases, a big question for the Sixth Circuit in Sister Michael Marie v. American Red Cross was the amount of control exercised over the means and manner of the volunteers’ performance.

The basics of the case were that two nuns from a more traditional sect of Catholicism felt discriminated against by a Roman Catholic supervisor who did not approve of their faith and would not promote them within the Red Cross to volunteer work involving greater responsibilities. By all objective means, the nuns were in no way considered employees. They had no salary, no benefits, no employment taxes—nothing. The sisters, however, contended that, despite the lack of pay, the Red Cross exercised control over how and when they did their work, an equally significant factor in deciding what constitutes an employee. The court saw things differently, with no evidence supporting the notion that the Red Cross dictated any part of their schedule or closely controlled their volunteer work.

While there may seem to be some level of disconnect in finding that a charitable organization is free to openly discriminate against volunteer nuns from a different strain of a shared religion, the court’s decision seems sensible when looked at from several steps back. Robbing a person of his or her livelihood based on discrimination is quite different than denying a person volunteer opportunities for the same reason. Furthermore, playing by certain rules is built into the employer-employee relationship, with each party being held to different standards than that in a standard charity-volunteer construct. Were charities like the Red Cross subject to facing lawsuits based in employment law from volunteers, it’s likely that opportunities for volunteering, as well as the manpower required to sustain the charities’ work, would quickly diminish.

Sex discrimination protection does not extend to a transgender employee

In November, a federal court in Texas dismissed a sex discrimination suit from a truck driving instructor who was born female but identified as male. The plaintiff (referred to in court documents as female, hence the use of feminine pronouns here) in Eure v. The Sage Corp.sued her employer after several disparaging comments were made about her, such as “what is that and who hired that?” and that the company did not want to employ “cross genders.”

Had this been a matter of derogatory comments about women, the matter might have been a rather straightforward application of Title VII protections. Instead, the court seemed to reason that, because of the very fact that the discrimination was premised in some sort of perceived gender confusion, it actually did not fall far enough into specific gender stereotyping one way or the other. Put differently, the court is saying that sexual discrimination against a man or woman is forbidden under Title VII, but sexual identity discrimination against someone whose gender physiology and psychology are conflicted gets no such protection.

Don’t expect this to be the end of this issue, whether through further appeal in this case or in future lawsuits.

Restricting job duties can be just as bad as firing under Title VII

What happens if sexual or racial discrimination doesn’t lead to losing your job, but instead just a big reduction in responsibilities? Do the two scenarios even compare? According to the Fifth Circuit, yes.

In Thompson v. City of Waco, Texas, the plaintiff, a black detective in the Waco Police Department, sued for racial discrimination. Thompson and two white detectives had all been suspended for falsifying time sheets, but, upon reinstatement, the police department imposed written restrictions on Thompson that didn’t apply to the two others. He was not allowed to search for evidence without supervision, log evidence, work in an undercover capacity, be an affiant in a criminal case, be the evidence officer at a crime scene, or be the lead investigator on an investigation, essentially stripping him of the “integral and material responsibilities of a detective.”

As such, Thompson argued that this significant drop in responsibilities—effectively becoming an assistant to other detectives—rendered his training and experience worthless and would rob him of future opportunities for advancement. The court, while acknowledging that the mere loss of some job responsibilities does not make a discrimination claim, agreed with Thompson that he was now a detective in name only, stuck in an objectively worse, less interesting, and less prestigious role. Considering how restrictive the Fifth Circuit has traditionally been in what constitutes an adverse employment action, it was a bit of a surprise to see it reject the Police Department’s motion to dismiss the action, which will now proceed as a Title VII suit.

Perhaps there’s some irony in that the least overt discrimination in the three cases discussed here is the only one where a court found actionable discrimination, but it goes to show how complicated interpreting and applying Title VII protections can be. If you’re a Georgia or Tennessee employer with questions about your obligations under federal and state statutes, or if you believe you’re the victim of employment discrimination, the attorneys at Mays & Kerr can help. We represent both plaintiffs and defendants in employment matters, including employment discrimination, wage and hour, FMLA, and more. With offices in Atlanta and Nashville, Mays & Kerr offers a client-centered philosophy and strives to accomplish our clients’ goals as if they are our own. If you need an experienced employment law attorney, contact us today at 1-877-986-5529.